SECOND JUDICIAL DISTRICT COURT STATE OF NEW MEXICO COUNTY OF BERNALILLO

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ENDORSED FILED IN MY OFFICE THIS

'N~ J 4 2015

A2r flLJ etER~ BISTRteT eOURT

Case Number: D-202-CR-2015000104 Case Number: D-202-CR-2015000105 DA No.: 2014-01565-1 and 2014-01565-2

STATE OF NEW MEXICO,

Plaintiff, vs.

KEITH SANDY DOMINIQUE PEREZ,

Defendants.

DEFENDANTS' REPLY IN SUPPORT OF THEIR JOINT MOTION TO DISQUALIFY THE SECOND JUDICIAL DISTRICT ATTORNEY'S OFFICE

The Defendants, Dominique Perez, through his counsel Robles, Rael and Anaya, P.C.

(Luis Robles, Esq.), and Keith Sandy, through his counsel Bregman & Loman, P.c. (Sam

Bregman, Esq.), state the following for their Reply in Support of Their Joint Motion to

Disqualify the Second Judicial District Attorney's Office:

INTRODUCTION

While a criminal prosecution is a very personal matter to the defendants, it should not be

personal to the prosecutor. Respectfully, the tone of the District Attorney's Office's Response

illustrates how muddied the waters have become in this particular prosecution. The Court should

perhaps consider why the District Attorney's office is so unwilling to turn over prosecution of

this matter to another equally competent district attorney's office if it will allow the defendants

the best chance of a fair and unbiased trial and protect public confidence in the state's criminal

justice system. Indeed, Defendants' Motion is not a personal attack on the District Attorney or

her staff, it is a simple observation that too much conflict clouds this prosecution for it to move

forward under the auspices ofthe Second Judicial District Attorney's office.

Both the existence and appearance of impropriety are required considerations under New

Mexico law. Precedent and national prosecutorial standards not only look at the existence of a

conflict or "adversity," but make measuring the appearance of conflict an essential inquiry. In

this case, both the appearance of a conflict and an actual conflict exist.

There are clearly several layers of conflict in this matter that require disqualification of

the Second Judicial District Attorney and her office. There is the inherent conflict that many

perceive between a district attorney's office prosecuting charges against law enforcement

officers in their district. There is the real conflict between the Albuquerque Police Department

and District Attorney Brandenburg attributable to their investigation of her actions involving her

son. There is the growing public perception that that investigation of District Attorney

Brandenburg was instigated in retaliation for the charges against these two Defendants. This

perception has not been assuaged by District Attorney Brandenburg's invitation to the public to

"connect the dots" regarding the APD investigation. By contrast, there is also concern that

District Attorney Brandenburg will "go easy" on Defendant officers because of her long-standing

relationship with APD. There is the recent tension between the District Attorney's office and the

City, which oversees APD, regarding who should be allowed on scene following officer­

involved shootings. There is a conflict in Deputy Assistant District Attorney DePalo being both

the investigator on scene at the Boyd shooting, a capacity in which she gave legal advice to

officers, and a prosecutor in this case. At every tum, real or apparent conflict materializes in this

case.

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Even assuming each and every individual involved - including Defendants, other APD

officers, the City employees and the District Attorney and her staff - behaved entirely above

reproach, the sheer complexity and political nature of the relationships at play in this case smack

of conflict of interest. Because the case is one of a high-profile and politically charged nature,

case law is clear that the conflict of interest between the District Attorney herself and the

Albuquerque Police Department must be imputed to the entire office. The facts demand

disqualification .

. I. A CONFLICT OF INTEREST EXISTS WHERE THERE IS A QUESTION REGARDING THE SECOND JUDICIAL DISTRICT ATTORNEY'S OFFICE'S ABILITY TO FAIRLY REPRESENT THE STATE AND PROVIDE A FAIR TRIAL TO DEFENDANTS.

The District Attorney would have the Court view any conflict of interest within her office

in this case as a mere "adversity of interest." Response at 1-3. However, "conflict of interest" is

the proper term. A criminal defendant has a constitutional right to a fair trial. By contrast, a

prosecutor has no "right" to prosecute cases. A prosecutor has statutory authority to prosecute

certain cases, NMSA 1978 § 36-1-18, and "[t]he prosecutor's primary duty in every case is to see

that a defendant has a fair trial and that justice is done." State v. Mathis, 1991-NMCA-018, ~ 52,

111 N.M. 687 rev'd on other grounds, 1991-NMSC-091, 112 N.M. 744.

A prosecutor represents the public interest, not the private interests of others or the

personal interest of the prosecutor. State v. Gonzales, 2005-NMSC-025, ~ 36, 138 N.M. 271.

While a prosecutor represents the public rather than a specific client, a conflict nonetheless exists

where the representation of the public and administration of justice stands to be materially

affected by a personal interest of the lawyer. Because the prosecutor's primary duty is to ensure

that the defendant has a fair trial, anything that creates a significant risk that her duty to the

defendant will be compromised logically represents a conflict. To the extent that the ongoing

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investigation of the District Attorney by the Attorney General's office at the behest of APD

would pose "a significant risk that the representation of one or more clients will be materially

limited by ... a personal interest ofthe lawyer," a conflict exists. Rule 16-107 NMRA. This goes

beyond mere "adversity of interest." Regardless of intent, this situation clearly creates a

significant risk that the officers' fair trial will be compromised. A significant risk is all that is

required under Rule 16-107 NMRA to create a conflict.

Consider the National District Attorneys Association's National Prosecution Standards

on conflict, referenced with approval by the New Mexico Supreme Court and the Court of

Appeals. See, ~, State v. McClaughtery, 2008-NMSC-044, ,-r 54, 144 N.M. 483. ,In a section on

"Specific Conflict" the Prosecution Standards note:

The prosecutor should excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor's neutrality, judgment, or ability to administer the law in an objective manner may be compromised.

The National District Attorneys Association, National Prosecution Standards § 1-3.3(d) (3d ed.

2009). Where an "objective" observer would conclude that neutrality or judgment may be

compromised, there is a conflict and the prosecutor should excuse him or herself. Defendants

will discuss the conclusions of a number of fair-minded and objective observers in detail below,

(see Section VI, infra), but for now, it is enough to say that these facts clearly meet the

description of conflict under the national standards.

Moreover, the New Mexico Supreme Court and the New Mexico Court of Appeals have

invoked the phrase "conflict of interest" in circumstances where a prosecutor's perceived

personal interest may disqualify her. See, ~, Gonzales, 2005-NMSC-025, ,-r47, 138 N.M. 271

("The focus on applying the standard to prosecutors should be the potential for the bias or

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interest to affect the proceedings. Cf. Young v. u.s. ex reI. Vuitton et Fils S.A., 481 U.S. 787,

807 -08, n.18 ( 1987) (observing that an actual conflict of interest exists where the potential for

misconduct is considered intolerable and that a determination of whether misconduct has

occurred is not necessary) (emphasis added).

While recognizing that prosecutors have a different role than the attorney who undertakes

a traditional attorney-client relationship, no reason exists to recast the conflict here as an

"adversity of interest" based on inapposite case law addressing a personal representative's duties

to a minor. See Response at 2 (citing Spoon v. Mata, 2014-NMCA-115, ~~ 8 & 10, 338 P.3d

1l3). Where Defendants have demonstrated a clear potential for a conflict of interest, they have

met their burden in demonstrating that the continued involvement of the District Attorney's

office violates a specific rule of professional conduct. Gonzales, 2005-NMSC-025, ~ 28, l38

N.M. 271. The clear weight of authority views this type of situation as an actual or perceived

conflict of interest. Changing the terminology will not alter the circumstances.

II. THE DISTRICT ATTORNEY'S RESPONSE MISSTATES DEFENDANTS' ARGUMENT AS TO WHY THE RELATIONSIDP BETWEEN APD AND THE DISTRICT ATTORNEY'S OFFICE WEIGHS IN FAVOR OF DISQUALIFICATION, AND THE COMPLEXITIES OF THAT RELATIONSHIP WARRANT DISQUALIFICATION IN THIS INSTANCE. '

Defendants are not arguing, as the District Attorney claims, that the District Attorney's

Office must always be disqualified in any case in which the defendant is a police officer or has

been a witness for the prosecution. Response at 3. Instead, the driving force of Defendants'

Motion is that the overall existence of and potential for conflict in this particular case is too great

to proceed. However, numerous lawmakers and other policy professionals have recognized the

inherent conflict when a district attorney's office investigates and prosecutes the very officers

that it depends on to prosecute a large portion of their cases. Simply characterizing this argument

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as something "absurd" or "nonsensical," Response at 4, ignores the landscape of this case

entirely.

In fact, proposed legislation called the Grand Jury Reform Act tackling this exact issue

was just introduced into the House Committee on the Judiciary in the United States House of

Representatives on December 10, 2014. HR 5830, text attached as Exhibit L. The Bill would

require that in cases involving an officer-involved death "[t]he Governor [of each state] shall use

a random process to select the special prosecutor from among the prosecutors in the State,

excluding the prosecutors of the locality in which the death took place." HR 5830 § 3(B). As

justification for this process, the Bill notes that "[t]here exists a symbiotic relationship between

local prosecutors and the law enforcement officers who regularly testify in routine grand jury

investigations," and that "[t]he closeness of this relationship creates public suspicion that

accused police officers receive preferential consideration from grand juries when they are subject

to grand jury investigations." HR 5830 § 2(2)-(3). The Bill had thirteen co-sponsors representing

eleven different states when it was introduced.

Recently, New Mexico Representative Michelle Lujan Grisham explained on her official

Facebook page that she would be co-sponsoring the act in the House. As she noted:

This bill would remove potential conflicts of interest that might exist when local prosecutors, who work closely with local police, help decide whether to charge an officer with a crime following a fatal shooting. It's important to remove these conflicts of interest, and just as important, to hold public preliminary hearings in order to remove the shroud of secrecy inherent in the grand jury process.

Attached as Exhibit M.

The Albuquerque Journal Editorial Board heartily endorsed Representative Grisham's

stance, stating in part:

The courts will decide whether those charges have merit, and whether District Attorney Kari Brandenburg is the right person to bring them. And while they may

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have restored a measure of confidence in the system, the case has eroded the relationship between the APD officers entrusted with enforcing the law a,nd the prosecutors expected to advise them and administer justice. In fact, the District Attorney's Office was banned from the scene of an investigation into a police shooting days after the charges were filed.

This type of contentious relationship, still unresolved, serves no one, be they in New Mexico or New York, especially not the public that relies on cops and prosecutors to work together to keep them safe.

Under Lujan Grisham's proposal, after a law enforcement officer uses lethal force the governor would select a prosecutor from outside the police officer's jurisdiction to investigate. That prosecutor would conduct a hearing in front of a judge, and the judge would rule on whether the officer should face criminal charges.

It's a system of impartial, transparent accountability that's miles ahead of the creepy secret grand jury proceedings the Bernalillo County DA used until 2013 that never found a police shooting prosecutors and grand jurors found unlawful.

Albuquerque Journal Editorial Board, Editorial: Lujan Grisham's RX right for police shooting

probes, Albuquerque Journal, February 9, 2015. Attached as Exhibit N.

Or, as Chief Judge Lippman of the New York Court of Appeals has eloquently explained

in a recent paper on Grand Jury Reform

Of irnrnediate concern are the perceptions of some that prosecutors' offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters. Such perceptions, while broad brush, clearly can undermine public trust and confidence in the justice system. Let's face it. Able and dedicated prosecutors and the grand jury process cannot win in these inherently incendiary situations. Damned if you do and damned if you don't, no matter how strict the adherence to fairness and the rule oflaw.

New York State Unified Court System State of the Judiciary 2015, Grand Jury Reform attached

as Exhibit 0 (emphasis added).

No insult was intended in Defendants' contention that a district attorney's office might

decline to prosecute one of its regular witnesses. See Motion at 6. It is a fact that high profile

cases involving various arms of the justice system who regularly work with the attorneys of a

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particular district are often referred to another district for investigation or prosecution. For

example, a recent criminal case involving former judge Albert "Pat" Murdoch was referred to the

First Judicial District Attorney's office for review because of the close connection between a

judge of the Second Judicial District Court and the Second Judicial District Attorney's Office.

See ~. Jeff Proctor, Boyd Shooter: 'Welcome to ROP; Mistakes now cease to exist' KRQE

News 13, October 7, 2014, Exhibit P. Likewise, after a grand jury found a shooting by two

Santa Fe police officers unjustified, the First Judicial District Attorney referred the case to the

Fifth Judicial District Attorney for review. See Uriel J. Garcia, Santa Fe officers won't be

charged in shooting, Santa Fe New Mexican, January 29, 2015, Exhibit Q. The extreme

language of the Response (see Response at 6, ~ 10) implying that Defendants seek to denigrate

the work of APD officers and the district attorney's office in general is entirely misplaced.

The National District Attorneys Association's National Prosecution Standards also

emphasize the importance of a working relationship between law enforcement and the district

attorney's office. "The chief prosecutor should actively seek to improve communications

between his or her office and other law enforcement agencies." The National District Attorneys

Association, National Prosecution Standards § 2-5.1 (3d ed. 2009). The Commentary notes that

The maintenance of good relations between the prosecuting attorney and the law enforcement agencies within the community is essential for the smooth functioning of the criminal justice system. Both parties have the burden of fostering, maintaining, and improving their working relationship and developing an atmosphere conducive to a positive exchange of ideas and information.

rd., Commentary to § 2-5. To claim that ongoing relationship between APD and the District

Attorney's office and the frequent use of APD officers as witnesses has absolutely no bearing

here is illogical.

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III. THERE IS NO INDICATION THAT ANOTHER OFFICE COULD NOT OR WOULD NOT PROSECUTE THE CASE AND IT IS NOT DEFENDANTS' BURDEN TO SHOW OTHERWISE.

In her Response, the District Attorney makes the novel claim that it is Defendants'

burden to prove that prosecution by another office is "actually a feasible alternative." Response

at 5. However, the portion of Gonzales cited by the District Attorney for this proposition says

nothing about the burden of Defendants to prove that another prosecutor would take their case.

See Gonzales, 2005-NMSC-025, ~ 27,138 N.M. 271,119 P.3d 151. Rather, Gonzales notes only

that the defendant has the initial burden of showing that prosecution by a member of the district

attorney's office is inconsistent with a particular standard of professional conduct. Id. ~ 28. If the

Court finds that one member of the office is disqualified, the burden then shifts to the State to

show why the entire office should not be disqualified. Id. ~ 30.

Each district attorney has the statutory authority to appoint a special prosecutor in cases

she cannot properly prosecute. NMSA 1978 § 36.1.23.1. It makes little sense that a criminal

defendant would be burdened with the task of finding a prosecutor to bring a case against him

when statute gives district attorneys the ability to appoint "a practicing member of the bar of this

state to act as special assistant district attorney." Id. In fact, making it a defendant's

responsibility to identify such a prosecutor could result in the very problem of allowing a

defendant to choose his own prosecutor that the District Attorney raises in her Response.

Response at 14, ~ 26.

The District Attorney further asserts, without support, that "[t]he contentious nature of

this prosecution suggests that it would be very difficult, if not impossible, to find another duly

elected prosecutor, with appropriate jurisdiction, that would be willing to step in and take the

case." Response at 5. Of course, it is the contentious nature ofthis prosecution, as acknowledged

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c

by the District Attorney, that makes another prosecutor essential. As referenced above, district

attorneys in various districts around the state have both referred and accepted contentious and

. high-profile cases in the past. There is no reason to assume a competent prosecutor in another

district would decline the case. Moreover, because the district attorney's offices have the

authority to appoint any practicing member of the bar in cases where an ethical conflict exists,

NMSA 1978 § 36-1-23.1, a provision already exists to secure a conflict-free prosecutor.

IV. CONFLICTS MUST BE WEIGHED IN EACH INDIVIDUAL CASE AND DISQUALIFICATION IN THIS CASE WOULD NOT PREVENT PROSECUTION IN OTHER INSTANCES.

The idea that granting Defendants' Motion would somehow create an unbreakable rule

preventing the district attorney's office from ever prosecuting cases where police officers are

either defendants or witnesses is a reductio ad absurdum argument. Response at 13-14. Each

prosecution requires its own independent evaluation of conflict. See State v. Pennington, 1993-

NMCA-037, ~ 11, 115 N.M. 372 (stating that "we leave to the sound discretion of the district

court whether the circumstances of the specific case require disqualification of the entire

[prosecuting] staff.") (emphasis added). The specific conflicts and questions raised in this case in

no way prevent the District Attorney's office from prosecuting future cases. In many officer-

involved shootings or other cases involving the police as defendants or witnesses there may be

no conflict. The District Attorney is exaggerating the precedential effect this single

disqualification would have.

The facts of this case are, to Defendants' knowledge, unprecedented. The District

Attorney's Response claims Defendants are trying to compare the case factually to Gonzales,

2005-NMSC-025. Response at 6-7. Defendants certainly are not. Defendants cited Gonzales for

its helpful summary of the legal considerations in disqualifying a prosecutor for a conflict of

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interest. However, the Court would be hard pressed to find any section where Defendants claim

the facts are controlling. There is little comparison between Gonzales and this case aside from

the professional relationships that exist between prosecutors and defendants in both cases.

In Gonzales the District Attorney allegedly had personal animosity toward a defendant

based on a strained prior working relationship. Gonzales in no way mirrors the layers of

convoluted relationship and highly publicized tension at issue here. However, the factual

disparity does not matter, because each case must be evaluated on its own facts. Pennington,

1993-NMCA-037, ~ 11. This case presents a much stronger case for disqualification than

Gonzales for all the reasons addressed in Defendants' Motion and this brief.

Likewise, when the District Attorney claims that there can be no conflict now because

"[f]or the past fourteen years, neither the City of Albuquerque nor APD has raised the slightest

complaint about the way officer involved shootings or other potential prosecutions of police

officers, have been handled by the current elected District Attorney," she misses the point. See

Response at 11, ~~ 18-19. If anything, this shows only that the concern here is real, and not one

raised as a matter of habit each time an officer is investigated or prosecuted. The fact that the

District Attorney's Office has generally done good work in reviewing (and at times prosecuting)

claims against officers makes it all the more logical for the Office to step back in this case and

preserve the public trust it has worked to generate. The specific facts of this case, not what has

happened in the past or may happen in the future, controls whether there is a disqualifying

conflict.

V. THE ONGOING INVESTIGATION OF THE DISTRICT ATTORNEY IS RELEVANT TO THE CONFLICT IN THIS CASE.

The investigation of alleged criminal conduct on the part of the district attorney by APD,

the agency which employs or has employed Defendants, adds to the appearance of conflict in this

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: . I.

matter. The District Attorney claims that because the Defendants were not involved in

investigating the claims against the District Attorney and that the detective involved in her

investigation is not involved in this case, there can be no conflict based on APD's investigation.

Such an assertion contradicts the District Attorney's own cautious acknowledgement that she

might need to reexamine her role in the investigation of the James Boyd matter following the

news that the Albuquerque Police Department asked the Attorney General's office to look into

its investigation of her. See Exhibit B to Motion to Disqualify.

The District Attorney tries to sidestep the problem by claiming that APD's investigation

cannot '" give an impression' of what the District Attorney, or any other prosecutor intends."

Response at 13, ,-r 23. Case law makes abundantly clear that conflict is not determined by what an

attorney thinks or intends. Conflict is determined by circumstances. See Rule 16-107 NMRA ("A

concurrent conflict of interest exists if. .. there is a significant risk that the representation of one

or more clients will be materially limited by the lawyer's responsibilities to another client, a

former client or a third person or by a personal interest of the lawyer. "). Defendants are stating

that the existence of the investigation, regardless of what the District Attorney or APD intends,

has created an appearance of conflict between the District Attorney and these APD officers.

Likewise, the District Attorney's own comments regarding the fact that she might need to

reconsider her role in the Boyd investigation given APD's report to the Attorney General, her

repeated invitations to the public to speculate regarding APD's motive in forwarding their

investigation to the Attorney General, and statements that she will "not be intimidated" out of

bringing this prosecution are problematic. Respectfully, the District Attorney herself has allowed

this prosecution and the investigation of her personal actions to become entwined. To now claim

that the two are separate and unrelated is contradictory. Again, this is not an attack on District

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Attorney Brandenburg; it is certainly within the District Attorney's duties to speak to the media

regarding high profile cases in her district. However, the fact that both her own comments and

media questions consistently bring these two specific cases together only illustrates that the

conflict here, both perceived and actual, is in part due to APD's investigation of the District

Attorney.

VI. CASE LAW ESTABLISHES PUBLIC PERCEPTION AS AN IMPORTANT FACTOR IN DISQUALIFICATION OF A DISTRICT ATTORNEY BECAUSE THE PUBLIC MUST HAVE CONFIDENCE IN THE STATE'S ADMINISTRATION OF CRIMINAL JUSTICE.

The District Attorney's Response claims that Defendants premise their argument that a

conflict exists on "various hearsay media accounts, unsigned editorials, anonymous comments

posted online and a letter by the City's Chief Administrative Officer." Response at 8. As a

preliminary matter, and as both the Court and the District Attorney are well aware, a hearsay

statement is one offered for the proof of the matter asserted. Rule 11-801 NMRA(C)(2). The

majority of this evidence cannot be properly called hearsay. Defendants are not offering the

statements to show that they are true. Defendants offer the statements simply to show that the

perception of conflict exists.

Myriad legal authority makes clear that the public appearance of conflict is a factor for

consideration in the disqualification of a prosecutor and that prosecutor's office. See, ~, State

v. Chambers, 1974-NMCA-058, ~ 30, 86 N.M. 383 overruled in part on other grounds by

Pennington, 1993-NMCA-037, 115 N.M. 372 ("The books are replete with cases indicating that

any appearance of evil in connection with the administration of public office should and must be

avoided; and particularly is this true of those offices involved in the enforcement of the law.")

(emphasis added); State v. Hill, 1975-NMCA-093, ~ 14, 88 N.M. 216 ("It is vital that the

prosecutor in a case "not only be disinterested and impartial but must also appear to be so.")

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(emphasis added); Gonzales, 2005-NMSC-025, 138 N.M. 271 (noting the importance of

"whether the facts support [ a] conclusion that the 'public would perceive continued prosecution

by the district attorney's office ... as improper and unjust, so as to undermine the credibility of

the criminal process in our courts. ''') (emphasis added).

As Defendants acknowledged in their Motion, on its own, "the fact that a case is high

profile, politically charged, or both, is insufficient for disqualification of a member of the

prosecution team." Gonzales, 2005-NMSC-025, ,-r 50, 138 N.M. 271. However, "after a

determination that a member is disqualified, the nature of the case may be relevant in

determining that there is an appearance of unfairness or impropriety no curative measure can

dissipate." Id. (emphasis added). "If the prosecution is of such great political importance that the

result could affect the political future of a district attorney, one might question whether the

pressures on the prosecutorial staff are any less influential than those on private counsel."

Pennington, 1993-NMCA-037, ,-r 13, 115 N.M. 372. Thus, when the District Attorney claims that

"[t]allying the number of new articles, blogs comments or letters is not a principled way to make

a decision and it is not the law," Response at 13, ,-r 22, she oversimplifies the law. Because case

law incorporates the public perception of justice as an important factor in motions to disqualify,

the factual contentions regarding the public viewpoint are highly relevant. While a simple tally

of articles is not the method the law describes for making a decision, assessing the public

perception of bias certainly is.

In spite of the above authority, the District Attorney accepts the proposition that Courts

must consider the appearance of impropriety when considering disqualification only "arguendo."

(Response at 9, ,-r 13). The District Attorney then cites a series of cases from Colorado, the

federal Second Circuit court and Ohio for the ideas that we must "not accept the most cynical as

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the true voice of the public," and that there is generally a presumption that the prosecution of a

defendant proceeds in good faith. Response at 9-10. Though this is not controlling authority,

Defendants agree with the general premise. In fact, Defendants' argument here is not even that

the prosecution was instigated in bad faith.l Instead, the argument is that in this particular

prosecution, there is such an unusual confluence of events and relationships amongst the Second

Judicial District Attorney's Office, the City of Albuquerque, the Albuquerque Police Department

and these particular officers that prosecution by the Second Judicial District Attorney's Office

cannot possibly be perceived as impartiaL

Moreover, Defendants have not relied on "the most cynical" public voices to illustrate

their point. Thus, even were the out-of-state case law controlling, its general proposition about

avoiding cynicism would be irrelevant. Defendants' original motion referenced three articles by

the largest newspaper in the state, at least two of which quote the District Attorney herself; three

news stories from the state's major network news channels, again quoting the District Attorney

herself; footage from the District Attorney's own press conference on her decision to charge the

Defendants; two editorials published and authored by the entire editorial board of the state's

largest newspaper; and an article from the New York Times. The fact that Defendants also

highlighted several statements from members of the reading and viewing public contained in

"internet quotes" does little to demean the quality and diversity of the other sources.

To alleviate any remaining concerns that Defendants are simply offering the opinions of

the most cynical of the public for the Court's review, Defendants would point to several

Defendants are not waiving the right to raise such an argument later as supported by the facts as they develop. However, that is not the argument Defendants raise in this particular Motion.

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additional articles and public statements regarding the perceived motives of both the prosecutor

and the Defendants' employer, APD, in this case.

For example, Rolling Stone ran a lengthy story on the state of the police force in

Albuquerque on January 29, 2015. In the article, Rolling Stone noted that "[a] top city

official...question[ed] the objectivity ofthe DA's office and suggest[ed] future shootings should

be referred to a special prosecutor." Nick Pinto, When Cops Break Bad, Albuquerque Police

Force Gone Wild, Rolling Stone, January 29,2015 attached as Exhibit R. The story went on to

note that District Attorney Brandenburg had invited the public to speculate whether the

investigation APD referred to the Attorney General was an attempt to intimidate her stating

"'You can put two and two together,' Brandenburg says. 'You can speculate on that.'" Exhibit R.

As Rolling Stone accurately noted, the public investment in the prosecution is high: "[f]or

observers in Albuquerque, the stakes couldn't be higher." Exhibit R.

Local media spoke to the District Attorney and Albuquerque Police Chief Gordon Eden

regarding the article. The news story, available through KOAT, notes that "Albuquerque police

are investigating allegations [District Attorney Brandenburg] abused her power in a case

involving her son. She believes that's retaliation for the charges against Sandy and Perez." See

Mike Springer, Rolling Stone Takes Swing at APDs Corrupt Mentality, KOAT January 30,2015

attached as Exhibit S. The live story also featured the District Attorney explicitly impugning the

integrity of APD's leadership by saying "I don't think we have courageous leadership in the

police department. It breaks my heart, because I know there was a time when we did have

courageous leadership."

Soon after, another well-respected publication, the New Yorker, ran an article on

Albuquerque's Police force and the recent investigations by the District Attorney's Office. See

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Rachel Aviv, Your Son is Deceased, The New Yorker, February 2,2015 attached as ExhibitT.

In the story, the author references the investigation into District Attorney Brandenburg's alleged

role in her son's legal troubles and states that

[ a] week after the investigation became public, Brandenburg told me that she would continue as district attorney, despite calls for her to leave the office. When I asked her if she saw the investigation as a fonn of intimidation, a way to prevent her from indicting the officers who shot Boyd, she said, "I think right now it's best if other people connect the dots."

On January 12th, Brandenburg filed counts of murder against the two officers who shot Boyd. The case will now go before a district judge, who will detennine if there is probable cause to send the officers to trial. At a press conference announcing the charges, Brandenburg said, "I am not going to be intimidated."

Exhibit T. Again, whether the District Attorney really believes that she is being intimidated by

APD in retaliation for filing charges against Defendants is perhaps less important that the

constant juxtaposition of the investigation of District Attorney Brandenburg (by the very

organization whose leadership she has publically criticized) and her investigation of APD's

officers in every story covering this case.

Local media has reiterated this perception of conflict again lately, noting that "[t]hings

have gotten ugly between [APD] and the Bernalillo County DA, now a watchdog group wants

the feds to step in. KRQE Staff, Group Asking DOJ to investigate APD, KRQE News 13

February 11, 2015 attached as Exhibit V.

Importantly, the perception of conflict comes from all sides. City employees have stated

that the District Attorney's conflict comes from improperly having the same assistant district

attorney investigate and then prosecute this case. When an assistant district attorney was recently

denied entry to a crime scene, a city attorney was credited with saying "the city and APD believe

the DA's Office has a conflict of interest in police shooting cases because of the way it handled

the Boyd case: by sending a different chief deputy DA to the scene of that shooting, then

17

assigning that same prosecutor to file the charges against Perez and Sandy." Jeff Proctor and

Chris McKee, Brandenburg: City officials, APD acting 'above the law', KRQE News 13,

J ariuary 14, 2015 attached as Exhibit V. The District Attorney fired back regarding the City

Attorney's concern with a conflict of interest by making the same argument that ~he raised in her

Response that such a concern based on her working with APD would put officers above the law.

See Exhibit v.

This point is further illustrated by the Albuquerque Journal's coverage of the District

Attorney's Response to this very Motion and the subsequent commentary. See Ryan Boetel, DA:

Attempt to force her off Boyd case 'absurd.', Albuquerque Journal, February 18,2015 attached

as Exhibit W. The article juxtaposes the District Attorney's strong language claiming that any

assertion of conflict is absurd with Representative Michelle Lujan Grisham's support of

legislation to address this type of situation preemptively. One commenter notes "How can a

conflict of interest or an appearance of impropriety be absurd? Your long standing history with

APD and the allowances you have given, would be normally called collusion!" while another

says "first time she does her job the right way ... boom!" While the Court can decide how much

weight to assign to public commentary, the comments to the on-line version of the article

illustrate well the tension in public opinion.

Clearly, it is not the voice of one cynical person alleging that a conflict exists in this case.

There is a real basis for concern that these proceedings will be slanted one direction or another.

Though the District Attorney portrays this as "shopping" for a prosecutor, no such intent can be

attributed to the Defendants. As the District Attorney points out, Defendants were not involved

in the investigation of the District Attorney's personal conduct. Response at 9-10. Defendants

have done nothing to create the conflict at issue. Compare State v. Robinson, 2008-NMCA-036,

18

143 N.M. 646 (where a criminal defendant threatened the life of a particular prosecutor in an

attempt to have her removed from his case). Instead, Defendants are simply asserting their right

to a fair trial, prosecuted by an uninterested party, that both they and the public can be confident

In.

CONCLUSION

A city tom by conflict over its police department and some of those officers' most

controversial actions appears to agree on one thing-the District Attorney's office should not be

the one prosecuting this case. Regardless of whether people think that this prosecution is

meritless and vindictive or believe that the District Attorney will not do her best to obtain a

conviction, the general concensus is the same: the case should not be prosecuted by the Second

Judicial District Attorney's Office. It appears that the District Attorney's Office alone does not

see the conflict.

Again, the governing right here is the defendants' right to a fair trial; there is no right of a

prosecutor to personally handle cases they feel strongly about, no matter how much they might

want to. In sum, regardless of whether the Second Judicial District Attorney's Office believes it

can give Defendants the fair prosecution they deserve, the incredible potential for bias demands

that the District Attorney and her office be disqualified from prosecuting this matter immediately

in favor of a prosecutor in which the public and the defendants can have more confidence.

WHEREFORE Defendants respectfully request that the Court exercise its equitable

jurisdiction, disqualify the Second Judicial District Attorney's Office from prosecuting this case,

and appoint a special prosecutor.

19

Luis Robles

I ,--

Respectfully submitted,

, P.c.

Luis Robles Attorney for Dominique Perez 500 Marquette Ave., NW, Suite 700 Albuquerque, New Mexico 87102 (505) 242-2228

BREGMAN & LOMAN, P.c.

By:

20

Sam Bregman Attorney for Keith Sandy 901 3rd Street NW, Suite A Albuquerque, NM 87102 (505) 761-5700